Law Society of the Northern Provinces v Mabando

The Law Society of the Northern Provinces (appellant) sought to strike Mr Kashan Ramokoka Mabando (first respondent), an attorney practising in Garankuwa, North West Province, from the roll of attorneys. The first respondent had been admitted as an attorney on 25 June 1991 and was a member of the Law Society of Bophuthatswana (second respondent). Between 2002 and 2008, the appellant received multiple complaints against the first respondent: from attorney David van Zyl for non-payment of correspondent fees (R3,420 outstanding for two years); from Bell Dewar and Hall for failure to account for moneys collected on their behalf; and from client Mr G M Ntsweng for failure to account for funds received. The first respondent repeatedly refused to respond to correspondence or cooperate with the appellant's disciplinary processes, claiming the appellant lacked jurisdiction over him by virtue of s 84A of the Attorneys Act 53 of 1979. He was found guilty on multiple charges by the appellant's disciplinary committees and fined, but failed to comply with sanctions or account to complainants. The North West High Court dismissed the striking off application and reprimanded the first respondent, finding his conduct unprofessional but not sufficiently grave to warrant removal from the roll.

• Whether the first respondent's conduct constituted unprofessional, dishonourable or unworthy conduct warranting removal from the roll of attorneys
• Whether the appellant (Law Society of the Northern Provinces) had concurrent disciplinary jurisdiction over attorneys practising in the former Bophuthatswana area pursuant to section 84A of the Attorneys Act 53 of 1979
• Whether section 84A was unconstitutional when read with items 2(1)(a) and (b) and 2(2) of Schedule 6 of the Constitution
• Whether the first respondent's bona fide belief in a constitutional challenge could mitigate his misconduct
• The appropriate test and standard for determining whether an attorney should be struck from the roll

1. The appeal was upheld with costs on an attorney and client scale for which the first and second respondents are jointly and severally liable, the one paying the other to be absolved. 2. The order of the court below was set aside and substituted with: (a) The application succeeds and the first and second respondents are ordered to pay the applicant's costs on an attorney and client scale jointly and severally, the one paying the other to be absolved. (b) An order is made in terms of paras 1-10.4, 11 and 12 of the applicant's notice of motion (effectively striking the first respondent from the roll of attorneys and granting ancillary relief including appointment of a curator for his trust funds).

The binding legal principles established are: (1) The three-stage inquiry for striking off applications (Jasat test) requires: first, establishing the alleged conduct on a balance of probabilities; second, a value judgment as to whether the attorney is a fit and proper person to continue practising by weighing the conduct against expected standards; and third, determining whether removal or suspension is appropriate in all the circumstances. (2) Section 84A of the Attorneys Act 53 of 1979 validly confers concurrent disciplinary jurisdiction on the Law Society of the Northern Provinces over attorneys practising in the former Bophuthatswana area. (3) The court on whose roll an attorney's name appears has ultimate disciplinary power over that attorney, whatever the source of the complaint and irrespective of jurisdictional disputes between law societies. (4) An attorney's persistent failure to account to clients and colleagues for trust moneys, combined with non-cooperation with disciplinary processes, evasiveness, lack of contrition, and absence of insight into professional standards, constitutes unprofessional, dishonourable and unworthy conduct rendering them not fit and proper to continue practising and liable to be struck from the roll. (5) A bona fide belief in a constitutional or jurisdictional challenge does not mitigate serious professional misconduct toward clients and colleagues.

The Court made several significant non-binding observations: (1) It severely criticized the Law Society of Bophuthatswana (second respondent) for its 'unbecoming turf war' with the appellant, noting it has 'repeatedly engaging in unnecessary and unbecoming litigation challenges' and that this 'regulatory jurisdictional conflict' has become 'a spectacle to the detriment of attorneys' profession.' (2) The Court noted the second respondent's 'remarkable lack of concern about legitimate complaints' and questioned whether its 'continued existence is justified,' stating 'one is entitled to ask whether its continued existence is justified.' (3) The Court directed the Registrar to serve a copy of the judgment on the Minister of Justice and Constitutional Development, stating it is 'time for Minister to inquire whether second respondent serves any useful purpose.' (4) The Court referenced its previous warning in Mogami that members of the second respondent's executive risked disciplinary proceedings themselves if there was repetition of dishonest behavior. (5) The Court observed that the inference was 'inescapable' that trust moneys were not properly retained in trust accounts, noting this is 'a grave and usually fatal error on the part of any attorney.' (6) The Court commented that courts 'should be concerned about the professional conduct of those who appear before them or who otherwise practise within their areas of jurisdiction.'

This case is significant for several reasons: (1) It reaffirms and applies the three-stage Jasat test for striking off applications, providing clear guidance on how courts should approach such matters. (2) It definitively settles that section 84A of the Attorneys Act validly confers concurrent disciplinary jurisdiction on the Law Society of the Northern Provinces over attorneys in the former Bophuthatswana area. (3) It emphasizes that the court on whose roll an attorney's name appears has ultimate disciplinary power, regardless of which law society brings the complaint or the source of the complaint. (4) It demonstrates that repeated failure to account to clients and colleagues, evasiveness, lack of contrition, and persistent non-cooperation with disciplinary processes constitute conduct serious enough to warrant striking off. (5) The judgment contains strong criticism of the Law Society of Bophuthatswana for failing in its regulatory duties and engaging in wasteful turf battles, raising questions about its continued utility. (6) It confirms that a bona fide belief in a jurisdictional or constitutional point cannot excuse or mitigate serious professional misconduct. (7) The case highlights the importance of law societies focusing on protecting the public interest rather than engaging in jurisdictional disputes.